Bowman v. Goldsmith Bros.

OPINION

By DOYLE, J:

Hilda Bowman, a tenant, was injured by slipping and falling on ice-and-snow-covered steps of a stairway leading to her rented apartment on the second floor of the defendant’s apartment house. In her suit for damages against her landlord, based upon claimed tort liability, she recovered a verdict at the hands of a jury in the Court of Common Pleas of Cuyahoga County in the amount of $4,000. The appeal to this court stems from the judgment entered thereon. There are various grounds of error claimed, some of which will be here discussed.

The evidence shows the apartment house contained (1) a basement apartment in which the janitor lived, (2) a first-floor apartment in which a tenant, Mrs. Short, lived and (3) a second-floor apartment in which the plaintiff lived with her daughter. At the rear of the building, an outside stairway extended downward from the ground level, several steps to the rear entrance of the basement apartment; the stairway also extended upward, from the ground level platform, seven steps, to a platform serving the entrance to the first-floor apartment of Mrs. Short; from this platform the stairway continued upward to a platform or small porch which served the entrance to the second-floor apartment of the plaintiff, Mrs. Bowman. Here the stairway ended.

It thus appears that the stairway descending from the ground level served only the basement apartment; the stairway from the ground level to the first-floor platform served both of the tenants of the first and second floors; and the stairway upon which the accident occurred, from the first-floor platform to the second-floor platform, served only the second-floor apartment, in which the plaintiff lived.

As a majority of this court views the record, there was presented for determination, among other things, the question of whether the landlord, in its rental of the apartment to the plaintiff, reserved possession and control of the stairway leading from the first-floor landing to the second-floor landing. If it did, and had assumed the duty of keeping the stairway clean and free from ice and snow, then it was required to exercise ordinary care to render the stairway reasonably safe for use by the plaintiff. Oswald v. Jeraj, et al, 146 Oh St 676. If it did not have the right to possession and control of the stairway in question, then it had no legal duty to keep it free from ice or snow. And if there was no legal duty to keep it in a reasonably safe condition, then tort liability would not arise from a mere breach of contract, either express or implied, to keep the premises clean and safe. Cooper v. Roose, 151 Oh St 316.

It has long been the general rule and so recognized in this state, that, when the only relation between the parties is contractual, the liability of one to the other, in an action of tort, must arise out of some positive duty which the law imposes because of the relationship, or because of the negligent manner in which some act which the contract provides for is done; and the mere omission to perform a contract obligation is never a tort unless the omission is also the omission to perform a legal duty. In other words, an action of tort for negligence cannot be maintained unless the defendant’s conduct constituted the breach of a duty imposed by law, apart from it being a breach of an obligation created by agreement of the parties, either express or implied.

The rule here pronounced finds support in a host of cases. In Tuttle v. Gilbert Mfg. Co. 145 Mass. 169, 13 N. E. 465, it is stated that “there must be some active negligence or misfeasance to support a tort. There must be some breach of duty distinct from breach of contract.” This was the rule, we believe, which Judge Taft was establishing by citing this Massachusetts case in Cooper v. Roose, supra.

Returning now to the record, it was claimed by the plaintiff that “the defendant * * * maintained control of the * * * stairway, and of the part thereof on which plaintiff fell, by the fact that its janitor, housed in the basement of said apartment building, was given the duty by the defendant to keep the stairway free and clear of ice and snow and was provided by the defendant with a shovel, scraper, salt and other necessary equipment for accomplishing this result. Furthermore, said janitor, on behalf of the defendant, was given the further duty of removing garbage from the porches of the various tenants by the use of said common stairway, and other additional duties relating thereto.”

It appears that such services had been performed by the janitor, and that the stairway in question was used by various persons who had business and social dealings with the plaintiff.

The trial court, in submitting the case to the jury, apparently was not concerned with the question of whether the stairway upon which the accident happened was or was not a common stairway, as that term is used in law, or whether any control thereof was in the lessee. The court’s appraisement of the legal questions involved was summarized by its statement as follows:

“I am simply submitting to the jury whether or not the evidence shows that the landlord had the care of that stairway under the implied contract as indicated by the plaintiff’s evidence, and, if so, then they are to go to the matter of whether or not he [it] exercised ordinary care in the removal of the ice and snow.”

The court then submitted the case to the jury on the issues only of negligence, proximate cause and contributory negligence, without explaining the legal effect of the evidence bearing on the question of occupation and control of the stairway. The “implied contract” incorporated in the statement above, apparently referred to evidence indicating an implied contract to clean, repair and maintain the stairway in a safe condition.

As indicated in prior paragraphs of this opinion, a mere omission to perform a contract, whether express or implied, in and of itself cannot be made the predicate for an action in tort, unless the omission is also the omission of a legal duty. Therefore, assuming that the evidence gives rise to an implied contract to maintain this stairway free from dangerous ice and snow, where do we find the evidence indicating the legal duty of the landlord to do so, in addition to a possible contractual obligation which may be implied?

Proceeding to situations where the landlord retains control, there may be found the well-recognized rule that, where premises are let to several tenants who occupy different parts thereof, but who enjoy and use certain parts in common— such as walks, driveways, porches, entrances, halls and stairways — as a means of access to their respective tenancies, these approaches and passageways are generally presumed to be in the possession and control of the landlord, in the event that specific evidence shows nothing to the contrary. Under such circumstances, the landlord in effect invites the use of such passageways, etc., by the tenants, and such other persons whose relation to the tenants involves their use to obtain access to the demised rooms or apartments, and the landlord may be held liable for personal injury to a tenant proximately resulting from his failure to exercise ordinary care in keeping such parts of the property in proper repair and in a reasonably safe condition. Under circumstances of this nature, there arises a legal duty on the part of the landlord which would supply the necessary predicate for an action in tort growing out of the omission to perform an express or implied contract to keep the premises reasonably safe by the removal of ice and snow.

On the other hand, where passageways and stairways or substantial parts thereof lead only to rooms or apartments under demise to one tenant, and under the physical conditions extant could not be used as a means of ingress to any part of the premises not rented to such tenant, there is no presumption of possession or control by the landlord. The mere fact -that there may be a contract, either express or implied, in which there is a reservation exclusively for the purpose of repairing the stairway or passageway, or the doing of janitor work, such as transporting garbage, sweepings, elimination of ice and snow, and other things of a similar nature, does not render the lessor liable in tort to the lessee for injuries sustained from falling on ice-covered steps, on the theory of the possession and control being lodged in the landlord. There must be more than this to create the duty in the landlord. See: Ripple v. Mahoning National Bank, 143 Oh St 614.

As a majority of this court views the record, the part of the stairway leading only to the plaintiff’s apartment was in the control of the tenant. It had no purpose except to serve the plaintiff’s apartment; there is no evidence indicating a reservation of control in the landlord except the implied reservation for the specific purposes mentioned above —which, as stated, are not sufficient to create a duty over and beyond a possible implied contract to keep the premises safe from the hazards of ice and snow. This being our conclusion, an omission to perform a contract obligation, either express or implied, is never a tort, unless the omission is also the omission of a legal duty.

Finding no legal duty on the part of the landlord to remove the ice and snow from the stairway, we find that this case was wrongly submitted to the jury on the theory of an implied contract of control and an implied contract to keep the premises safe.

The judgment will be reversed and final judgment entered for the defendant.

HUNSICKER, PJ, concurs. NICHOLS, J, dissents. (See dissenting opinion.)